93 Decision Citation: BVA 93-17044
Y93
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 91-11 570 ) DATE
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THE ISSUES
1. Entitlement to service connection for defective hearing.
2. Entitlement to service connection for sinusitis.
3. Entitlement to service connection for tinnitus.
4. Entitlement to an increased evaluation for a right ankle joint
disorder with arthritis, currently evaluated as 10 percent disabling.
5. Entitlement to the assignment of a separate compensable
evaluation for a right ankle scar.
6. Entitlement to an increased evaluation for a low back disability,
currently evaluated as 10 percent disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
The veteran
ATTORNEY FOR THE BOARD
M. F. Halsey, Counsel
INTRODUCTION
The veteran served on active duty from April 1967 to April 1971, and
from December 1974 to January 1978.
This matter initially came before the Board of Veterans' Appeals
(Board) on appeal from a December 1989 rating decision of the
St. Louis, Missouri Regional Office (RO) of the Department of
Veterans Affairs (VA). This rating action denied claims of
entitlement to service connection for hearing loss, tinnitus, and a
left knee disorder, and entitlement to increased ratings for low back
and right ankle disorders. A notice of disagreement concerning the
right ankle was received in January 1990. It was maintained that a
separate compensable evaluation for a right ankle scar should have
been assigned. A statement of the case regarding the right ankle was
issued on February 12, 1990. An appeal was received from the veteran
on February 28, 1990.
A claim of service connection for sinusitis was received with the
veteran's February 1990 appeal. This claim was denied by a rating
action taken in April 1990. Service connection for numbness of the
right foot and arthritis of the right ankle was also denied. A
notice of disagreement with the April 1990 rating action was received
in May 1990. A statement of the case addressing the issues denied in
April 1990 was issued in June 1990. The veteran appeared at the RO
for a hearing on June 18, 1990. He specifically withdrew his claim
of service connection for numbness; however, he expressed his desire
to appeal the December 1989 denial of service connection for hearing
loss and tinnitus. He also raised the issue of service connection
for otitis media and otitis externa. By a June 21, 1990 action, the
hearing officer confirmed the denial of service connection for
arthritis of the right ankle, sinusitis, hearing loss, and tinnitus,
and the denial of a separate compensable evaluation for a right ankle
scar and an increased evaluation for a right ankle disorder.
By a June 26, 1990 rating action, service connection for otitis
media/externa was denied. The veteran's claim of service connection
for arthritis of the right ankle was granted. A supplemental
statement of the case that addressed all issues mentioned previously
with the exception of otitis media/externa was issued on June 27,
1990. Further argument on appeal was received from the veteran in
July 1990. His correspondence included arguments regarding hearing
loss and tinnitus.
Written argument was received from the veteran's representative,
Disabled American Veterans, on a VA Form 1-646 dated January 3, 1991.
Following receipt of additional evidence, a rating action was taken
on January 15, 1991; this action denied the benefits sought by the
veteran. A supplemental statement of the case was issued on January
29, 1991. The case file was received at the Board on February 7,
1991 and was docketed on February 11, 1991. Additional written
argument was received from the veteran's representative on March 21,
1991. By a May 1, 1991 action, the Board remanded the case for
additional development. (As noted in the Board's May 1991 remand,
although the veteran raised the issue of service connection for
otitis media/externa at the June 1990 hearing, he has not taken the
steps necessary to appeal the June 26, 1990 denial. As a result,
this issue has not been considered on appeal.)
An examination was conducted in May 1991 pursuant to the Board's
remand. Both of the veteran's service-connected disabilities (right
ankle and low back) were evaluated. A rating action denying
increased evaluations was taken on July 3, 1991. A supplemental
statement of the case was issued on July 23, 1991. Following receipt
of additional evidence, a rating action and supplemental statement of
the case were prepared in September 1991. Written argument was
received from the veteran's representative on a VA Form 1-646 dated
October 23, 1991.
A notice of disagreement regarding the denial of an increased
evaluation for the veteran's low back was received on October 24,
1991. A statement of the case was issued in November 1991. An
appeal regarding this issue was received on November 29, 1991.
Following receipt of additional evidence, rating actions were taken
in December 1991, September 1992, and March 1993. Supplemental
statements of the case were issued following each rating action. The
case file was received at the Board on June 1, 1993 and was docketed
on June 11, 1993. Additional written argument dated July 1, 1993 was
received from the veteran's representative.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that he experiences hearing loss and tinnitus as
a result of acoustic trauma during service. He asserts that,
although he wore hearing protection while working on flight lines, he
nevertheless was exposed to a great deal of jet engine noise. He
also contends that he has had a chronic problem with sinusitis since
service. In this regard, he maintains that he did not seek medical
treatment during service, but instead bought over-the-counter
medications. So far as his right ankle is concerned, he contends
that he has limited motion that warrants an increased evaluation and
experiences pain and ulceration of a surgical scar which warrants a
compensable evaluation separate from the loss of function of the
joint. Finally, he asserts that his service-connected low back
disability occasionally causes incapacitating exacerbations which
warrant the assignment of a 20 percent evaluation under
38 C.F.R. § 4.71a, Code 5003 (1992).
DECISION OF THE BOARD
In accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991),
following review and consideration of all evidence and material of
record in the veteran's claims file, and for the following reasons
and bases, it is the decision of the Board that the veteran's claims
of service connection for defective hearing and sinusitis are not
well grounded. It is also the decision of the Board that a
preponderance of the evidence is against his claim of service
connection for tinnitus. As for his claims of increased evaluations,
it is the decision of the Board that a preponderance of the evidence
is against the claims of increased evaluations for the right ankle
and low back disorders.
FINDINGS OF FACT
1. All evidence necessary for a proper disposition of the veteran's
appeal has been obtained by the originating agency.
2. The veteran does not have a hearing status that meets the
criteria set forth in 38 C.F.R. § 3.385 (1992).
3. The veteran did not complain of tinnitus during service or until
many years after service.
4. Sinusitis was not shown in service or for many years thereafter.
5. The veteran's right ankle joint problems are manifested by no
more than moderate limitation of motion as well as tender and painful
scars with dysesthesia along the scar and numbness in the distal
distribution of the sural nerve.
6. The veteran's low back disability is manifested by pain and
slight limitation of motion along with complaints of muscle spasm and
occasional episodes of radiating pain.
CONCLUSIONS OF LAW
1. The veteran has not submitted evidence of well-grounded claims of
entitlement to service connection for defective hearing or sinusitis.
38 U.S.C.A. §§ 1110, 1131, 5107, 7104 (West 1991); 38 C.F.R.
§§ 3.303, 3.385 (1992).
2. Tinnitus was not incurred in or aggravated by active military
service. 38 U.S.C.A. §§ 1110, 1131, 5107, 7104 (West 1991); 38
C.F.R. § 3.303 (1992).
3. An increased evaluation for a right ankle joint disorder with
arthritis is not warranted. 38 U.S.C.A. §§ 1155, 5107, 7104 (West
1991); 38 C.F.R. §§ 4.14, 4.40, 4.45, 4.48, 4.71a, Code 5003, 5010,
5271, 7804 (1992).
4. A separate 10 percent evaluation is not warranted for a right
ankle surgical scar. 38 U.S.C.A. §§ 1155, 5107, 7104 (West 1991); 38
C.F.R. § 4.14 (1992).
5. An increased evaluation for the veteran's service-connected low
back disability is not warranted. 38 U.S.C.A. §§ 1155, 5107, 7104
(West 1991); 38 C.F.R. §§ 4.40, 4.45, 4.71a, Code 5292, 5295 (1992).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Defective Hearing and Sinusitis
The threshold question to be answered is whether the veteran has
presented well-grounded claims. Once he submits well-grounded
claims, VA is required to assist him in developing facts pertinent to
the claim and, after all procurable evidence is assembled, to
adjudicate the claim. 38 U.S.C.A. § 5107 (West 1991); Gilbert v.
Derwinski, 1 Vet.App. 49 (1990) (section 5107 provides that the
claimant's submission of a well-grounded claim gives rise to VA's
duty to assist and to adjudicate the claim). A well-grounded claim
is a "plausible claim, one which is meritorious on its own or capable
of substantiation." Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990).
As far as the veteran's claims of entitlement to service connection
for defective hearing and sinusitis are concerned, the Board finds
that evidence sufficient to justify a belief by a fair and impartial
individual that the veteran's claims are well grounded has not been
submitted. § 5107. Consequently, there is no duty to assist the
veteran in the development of these claims or to adjudicate the
merits of his claims. Gilbert.
In order for consideration to be given to a claim of entitlement to
service connection, there must be a showing that the veteran
currently experiences the alleged disability. § 3.303. In this
regard it should be pointed out that hearing acuity is not considered
impaired for purposes of an award of service connection unless
audiometric test results, including speech recognition scores, have
reached a certain level. The provisions of 38 C.F.R. § 3.385 (1992)
provide that:
Hearing status shall not be considered service
connected when the thresholds for the
frequencies of 500, 1,000, 2,000, 3,000 and
4,000 Hertz are all less than 40 decibels; the
thresholds for at least three of these
frequencies are 25 decibels or less; and speech
recognition scores using the Maryland CNC Test
are 94 percent or better.
§ 3.385. Applying these criteria to the test results submitted in
support of the veteran's claim--audiometric testing done in November
1990--the Board finds that the veteran's hearing status does not
qualify him for service connection. In other words, the veteran does
not have a hearing status that is impaired to the point that
entitlement to service connection may be considered. Indeed, the
examiner who performed the November 1990 testing noted that the
veteran's hearing was within normal limits. Since § 3.303 requires
that some impairment or disability currently be shown as a
prerequisite to further consideration of any relationship the claimed
disability might have to service, the veteran's claim may not be
considered plausible. Murphy.
As for his claim of service connection for sinusitis, the Board notes
that sinusitis was not shown in the record until December 1989. The
veteran's service medical records show that the veteran was seen on
occasion for problems with clogged nasal passages and viral
syndromes, but sinusitis was never diagnosed. In this regard, the
Board believes that it is reasonable to presume that physicians who
cared for the veteran in service were competent enough to make a
diagnosis of sinusitis if clinical findings had supported such an
assessment. Consequently, the Board concludes that, on those
instances when the veteran was seen in service, clinical findings did
not support a diagnosis of sinusitis. Rather, viral syndromes were
specifically diagnosed.
Although it was felt that the veteran had a sinus infection when seen
by a dentist in December 1989 and when evaluated by VA in June 1990,
neither of these examiners commented on the onset of any chronic
sinusitis the veteran may have. The veteran testified that he had
sinusitis during service and followed the instructions of a corpsman
as to how to treat himself. This sort of self-diagnosis is of little
probative value--so little that the Board finds the veteran's claim
to be not well grounded. The veteran has not demonstrated that he is
qualified as an expert to make such an assessment of his condition in
service. When, as here, the matter of inquiry requires expert
judgment, the veteran's inexperienced opinion is not sufficient to
make his claim well grounded. Espiritu v. Derwinski, 2 Vet.App. 492
(1992); Tirpak v. Derwinski, 2 Vet.App. 609 (1992).
Tinnitus
Since tinnitus, unlike sinusitis, or for that matter most
disabilities, is diagnosed based solely on the complaint of the
patient that he experiences a ringing in his ears, the Board finds
that the veteran's testimony that he has had tinnitus since service
is evidence that makes his claim well grounded. However, we find
that the greater weight of the evidence is against his claim.
The salient point to be made is that his service medical records
contain no reference to complaints of tinnitus. This is so even
though the veteran was seen many times for other complaints regarding
his ears, such as cerumen accumulation and infections. From 1967 to
1976, the veteran was seen or evaluated regarding his ears or hearing
acuity at least 15 times, including one time by VA in June 1971. No
complaint of tinnitus was made on any of those instances. It was not
until the veteran filed a claim in August 1989 that tinnitus was
mentioned. The only medical record of this problem is a November
1990 private report showing that the veteran complained of his ears
ringing, mainly at night. However, the examiner expressed no opinion
regarding the onset of tinnitus. It was merely noted that the
veteran reported having tinnitus since the late 1960's.
The absence of complaints in service, or for many years following
service, leads the Board to conclude that a preponderance of the
evidence is against the veteran's claim. The veteran filed claims
for VA benefits immediately following his release from service in
1971 and again in 1978. No mention of tinnitus was made in either
claim, but the veteran did mention other disabilities that he
believed began in service. In short, his testimony and complaints
made so long after service are of little weight when compared with
his service medical records and the absence of complaints for so many
years.
Right Ankle Joint
A 10 percent evaluation is currently in effect for problems the
veteran experiences with his right ankle. The originating agency has
characterized this disability as a sprain with instability,
postoperative residuals, arthritis, and a painful scar.
The veteran's service medical records show that he injured his "left"
ankle when he jumped from the wing tank of an airplane in August
1968. In March 1970, he was treated for a crush injury of the right
foot. It was noted that he had had a chronic problem with inversion
of the right foot since his ankle was injured one and one-half years
earlier. Upon examination, his right ankle was considered definitely
unstable with repeated inversion. An X-ray report showed a possible
compression fracture of the third cuneiform. A March 28, 1970 report
shows that his foot was casted.
When evaluated in June 1976, ligament laxity in the right ankle was
noted. An August 1976 report shows that ligament reconstruction was
recommended. This was performed in September 1976 and the veteran
underwent physical therapy in order to increase strength and range of
motion after the cast was removed in November 1976. A medical
evaluation board convened in December 1976 and found that the veteran
was able to walk unsupported and that the joint was remarkably
stable. He was placed on six months of limited duty.
A second medical evaluation board was convened in May 1977 and found
that the veteran had full range of motion of the right tibiotalar
joint but only 50 percent of normal motion of the subtalar joint.
Ligament stability appeared satisfactory. An orthopedic evaluation
conducted in October 1977 showed a 50 to 60 percent decrease in
subtalar motion. It was noted that the veteran complained of the
lateral portion of his foot becoming sore after standing or walking.
He also complained that his ankle felt as if it were going to give
out.
When examined by VA in July 1978, the veteran reported that his ankle
was more stable than it had been previously. He complained of some
limitation of motion. Limitation of eversion to about 10 degrees and
slight limitation of dorsiflexion were noted. An
X-ray was negative for fracture. In July 1979, it was noted that
inversion on the right was limited to 5 degrees whereas inversion on
the left was performed to 20 degrees.
A VA outpatient treatment note prepared in May 1989 shows that the
veteran was found to have good stability of the right ankle. Mild
degenerative changes were noted in the tibiotalar joint on an X-ray
report prepared in May 1990. A May 1991 VA examination report shows
that the veteran had zero degrees of inversion, but otherwise had an
essentially normal range of motion. Likewise, an August 1991 report
prepared by a private physician shows that the veteran had normal
extension and flexion, but had a 30 percent loss of supination
eversion. It was felt that the ankle was stable in all planes and
that there was a good result from the reconstructive surgery. The
examiner opined that the veteran's ankle joint caused a 10 percent
disability based on loss of motion. The same examiner found that
range of motion was fairly well preserved in November 1991.
When examined by VA in May 1992, the veteran complained of pain and
stiffness. The examination was within normal limits except for a
decrease in range of motion. It was noted that he had zero degrees
of inversion and zero degrees of eversion. Dorsiflexion was
performed to 15 degrees and extension was performed to 30 degrees.
(Normal motion is 20 degrees of dorsiflexion and 45 degrees of
extension. 38 C.F.R. § 4.71, Plate II (1992).) There was no
deformity or swelling.
The provisions of 38 C.F.R. § 4.71a, Code 5271 (1992) allow for the
assignment of a 10 percent evaluation when there is moderate
limitation of motion. There must be a showing of marked limitation
of motion before a 20 percent evaluation may be assigned. Code 5271.
As noted above, the veteran generally has had essentially normal
motion with the exception of limitations on inversion and eversion.
Indeed it appears that the reconstructive surgery performed in 1976
had the desired effect, restoring stability to the ankle joint.
Although the surgery may have also had the effect of limiting motion,
especially on inversion, the Board finds that this limitation is no
more than moderate. Examiners have repeatedly concluded that the
veteran has essentially normal motion and good stability. These
characterizations of the veteran's joint are the sort that correlate
with the assignment of no more than a moderate limitation. As will
be further discussed below, the ankle disability includes a scar
which is periodically symptomatic and which includes a sensory
component. However, this aspect of the disability is not shown to be
more than mild in itself and thus the rating under Code 5271 is more
or at least equally favorable than rating the scar residuals alone.
Ratings under both aspects of the disability under separate codes is
precluded by regulation as will be discussed below.
Although the veteran has arthritis in the right ankle joint, this
disability is to be rated on the basis of limitation of motion under
Code 5271. See Code 5003. Only when there is no limitation of
motion or when the limitation of motion is noncompensable are other
criteria set forth in Code 5003 to be applied. Code 5003. As a
result, the Board finds that a preponderance of the evidence is
against the veteran's claim. His joint difficulties appear confined
to limitation of motion and complaints of pain and stiffness.
Additionally, there is no indication from the clinical findings made
in recent years that the pain and stiffness cause any functional loss
greater than that described by the restricted motion. An increased
evaluation is not warranted.
Right Ankle Scar
As noted above, the veteran underwent surgery in September 1976 for
ligament reconstruction in the right ankle joint. The result was
that the veteran had a surgical scar that was described in November
1976 as being tender. It was also noted that he experienced
dysesthesia in the distal portion of the scar. Persistent discomfort
in the scar and irritation due to his having to wear combat boots
were noted in reports prepared in January 1977. The medical
evaluation board report prepared in May 1977 shows that the veteran
complained of sensitivity in the lateral scar when wearing combat
boots. It was noted that the scar was well healed, somewhat
sensitive in the mid portion, and that the veteran experienced
paresthesia into the lateral aspect of the heel when pressure was
applied over the mid portion of the scar.
When examined by VA in July 1978, it was noted that the veteran had a
healed surgical incision that ran from a point three inches above and
behind the lateral malleolus down behind the lateral malleolus and
onto the lateral aspect of the foot. The scar was considered tender
and numbness was noted along the lateral border of the foot
underneath the scar. A private treatment report dated in November
1978 shows that the veteran experienced irritation and tenderness
over the scar. It was felt that his ankle was stable and that the
scar was the primary problem with his right lower extremity.
An August 1982 record shows that the veteran had struck his right
ankle three weeks earlier and had developed an ulcer. The veteran
testified in June 1990 that he had areas of numbness and
hypersensitivity along the scar. When seen by VA in May 1991, he
complained of pain along the scar and thinning of the skin which
resulted in recurrent ulcer formation. Upon examination, pain was
noted along the mid-scar area. The pain radiated into the lateral
foot. The scar was hypertrophic and thin. There was evidence of an
old ulcer formation. A private physician's report dated in August
1991 also shows that the veteran had hypersensitivity and irritation
that ran into the nerves of the heel. This physician opined that the
scar was seven percent disabling, but did not state what criteria he
used to arrive at such an estimate.
Notwithstanding the above, the fact is that the provisions of
38 C.F.R. § 4.14 (1992) prohibit the evaluation of the same
disability under various diagnoses, especially when the scar appears
in the same anatomical region as the joint disorder for which a
10 percent evaluation has already been assigned. In other words, the
scar and the joint disorder are part of the same disability.
Consequently, the Board finds that § 4.14 does apply. The effect to
which the scar is disabling has been taken into account in evaluating
the overall ankle disability, and a separate evaluation is not
warranted.
Low Back Disorder
The originating agency has assigned a 10 percent evaluation for a low
back strain under 38 C.F.R. § 4.71a, Code 5295 (1992). The veteran
contends that his back disorder has worsened to the point that an
increased evaluation is warranted.
His service medical records show that the veteran complained of back
pain in September 1967. It was felt that he had a mild back strain.
He also experienced pain in March 1968 following heavy lifting. Hot
soaks were prescribed for back pain in June 1968. He was seen in
July 1969 following an automobile accident and the clinical
impression was a mild lumbosacral strain. Additionally, he was seen
in September 1969, in May 1970, and in November 1973 for complaints
of pain and spasms. When seen in November 1973, it was noted that
his range of motion was poor. Likewise, he had limited motion in
January 1974. In March 1977, he reported twisting his back playing
softball and the clinical assessment was that he had a mid-back
strain. A mild decrease in range of motion was noted.
When examined by VA in July 1978, he complained of episodes of low
back spasm since 1967 or 1968. He had a full range of motion and an
X-ray study was reported as essentially negative. A recurrent low
back strain was diagnosed following a July 1979 VA examination.
Reports dated in 1980, 1988 and 1989 show that the veteran had
recurrent difficulties with pain and spasm. Significantly, an August
1989 report prepared by a private physician shows that a computerized
tomography (CT) scan had revealed a degenerative change at L5-S1. An
October 1989 X-ray report prepared by VA also showed changes at L5-S1
interspace.
Several letters dated from 1988 to 1990 from a private chiropractor
were received showing that the vet had been seen repeatedly for
muscle spasms and back pain which were described as moderate. An
August 1989 report by a private physician shows that the veteran had
mild tenderness. The clinical impression was a muscle spasm. A May
1991 VA examination report shows that the veteran had good range of
motion in the lumbar spine, but had pain when trying to stand erect
after bending. When examined by VA in May 1992, the veteran
complained of a dull aching pain that occasionally radiated to the
right buttock and posterior leg. Some lumbosacral tenderness was
noted as well as some limitation of flexion. The veteran has also
submitted documentation showing time missed from work.
Although the veteran's service-connected disability has been
described as a low back strain and evaluated under Code 5295, the
Board notes that degenerative changes of the joint spaces may occur
with a lumbosacral strain and the manifestations of such changes must
also be considered when rating low back strain. See Code 5295.
Degenerative disc syndrome has been diagnosed but not confirmed by
myelogram. Regardless of the diagnosis, all low back symptomatology
has been taken into account.
As indicated, consideration must be given to Code 5295. The
currently assigned 10 percent evaluation takes into account
characteristic pain on motion. A 20 percent evaluation would require
muscle spasm on extreme forward bending and loss of lateral spine
motion. Symptoms of this degree are not shown, though some
complaints of muscle spasm have been noted. Overall, the disability
is not shown to be more than mild in degree and thus an increased
evaluation is not warranted.
ORDER
Service connection for defective hearing, tinnitus, and sinusitis is
denied.
An increased evaluation for a right ankle joint disability with
arthritis is denied.
A separate 10 percent evaluation for a right ankle scar is denied.
An increased evaluation for a low back disability is denied.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
*
(Member temporarily absent) U. H. ANG, M.D.
DANIEL J. STEIN
*38 U.S.C.A. § 7102(a)(2)(A) (West 1991) permits a Board of Veterans'
Appeals Section, upon direction of the Chairman of the Board, to
proceed with the transaction of business without awaiting assignment
of an additional member to the Section when the Section is composed
of fewer than three Members due to absence of a Member, vacancy on
the Board or inability of the Member assigned to the Section to serve
on the panel. The Chairman has directed that the Section proceed
with the transaction of business, including the issuance of
decisions, without awaiting the assignment of a third Member.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a
decision of the Board of Veterans' Appeals granting less than the
complete benefit, or benefits, sought on appeal is appealable to the
United States Court of Veterans Appeals within 120 days from the date
of mailing of notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board was filed
with the agency of original jurisdiction on or after November 18,
1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402
(1988). The
date which appears on the face of this decision constitutes the date
of mailing and the copy of this decision which you have received is
your notice of the action taken on your appeal by the Board of
Veterans' Appeals.